FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. Respondent moves to dismiss the petition on the grounds that it is second or successive and untimely. See 28 U.S.C. § 2244(b), 2244(d). As explained below, the petition is second or successive, and this court lacks jurisdiction to consider it.
A petition is second or successive if it makes "claims contesting the same custody imposed by the same judgment of a state court" that the petitioner previously challenged, and on which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007); see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive petition in a district court, a petitioner must obtain from the appellate court "an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Without an order from the appellate court, the district court is without jurisdiction to consider a second or successive petition. See Burton, 549 U.S. 147.
On May 18, 1998, in the Shasta County Superior Court, petitioner was sentenced to a determinate state prison term of thirty-eight years. See Pet. at 1, Ex. C (Abstract of Judgment). On January 26, 2004, petitioner filed a petition for writ of habeas corpus in this court challenging that judgment of conviction. Murawski v. Henry, No. 2:04-cv-00176 EJG PAN, Docket No. 1.*fn1
On December 28, 2004, judgment was entered dismissing the petition as untimely. See id. at Docket Nos. 8, 9. The current petition also challenges the constitutionality of the sentence petitioner received on May 18, 1998. Pet. at 1.
In her opposition to respondent's motion, petitioner does not assert that she was not the petitioner in Murawski v. Henry, No. 2:04-cv-00176 EJG PAN. Neither does she assert that the current petition challenges a different judgment. Rather, she argues the merits of her claims and concedes that she has not obtained authorization from the Ninth Circuit Court of Appeals for this court to consider the petition.Pet.'s Traverse at 2:18-21.
Clearly, the petition filed in this action successive to Murawski v. Henry, No. 2:04-cv-00176 EJG PAN. See Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (dismissal of habeas petition as time barred "constitutes an adjudication on the merits that renders future petitions under § 2254 challenging the same conviction 'second or successive' petitions under § 2244(b)."). Therefore, petitioner cannot proceed with this claim until receiving permission from the Ninth Circuit Court of Appeals. See 28 U.S.C. § 2244. This court lacks jurisdiction over the petition and respondent's motion to dismiss must be granted.
Accordingly, it is hereby RECOMMENDED that:
1. Respondent's June 6, 2008 motion to dismiss be granted; and,
2. This action be dismissed on the ground that the petition is second or successive and petitioner has not demonstrated that the Ninth Circuit has granted her leave to file it in this court.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal ...